Courts issue conflicting decisions in public-entity cases against gun industry.Two cases brought by public entities in New Jersey against the gun industry recently yielded conflicting opinions on the viability of public-nuisance claims that seek reimbursement Reimbursement
Payment made to someone for out-of-pocket expenses has incurred. of government expenses--including costs for police protection, emergency and medical services, and pension benefits--associated with gun-related crimes. The decisions reflect a split in opinions issued by state and federal trial and appellate courts A court having jurisdiction to review decisions of a trial-level or other lower court.
An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. that have attempted to apply settled tort law A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. to a novel liability theory.
The first lawsuit of this kind was filed by the city of New Orleans New Orleans (ôr`lēənz –lənz, ôrlēnz`), city (2006 pop. 187,525), coextensive with Orleans parish, SE La., between the Mississippi River and Lake Pontchartrain, 107 mi (172 km) by water from the river mouth; founded in 1998. Since then, one state--New York--and more than 30 municipalities have filed similar claims. (See Allen Rostron, Gunning for Justice, TRIAL, Nov. 2001, at 26.)
The complaints echo those brought by state governments to recoup recoup
To sell an asset at a price sufficient to recover the original outlay or to offset a previous loss. from the tobacco industry costs associated with smoking. Although plaintiffs have invoked a variety of legal theories--including products liability, negligence, and unjust enrichment--some experts say the public-nuisance claims hold the most promise for plaintiffs; but as the recent New Jersey cases indicate, they are receiving mixed reviews in the courts.
In a decision hailed as a victory for the gun industry, the Third Circuit ruled that Camden County's public-nuisance claim against several gun manufacturers had been properly dismissed by a lower court. (Camden County Camden County can refer to:
Variants of biretta. , U.S.A. Corp., 273 F.3d 536 (3d Cir. 2001).)
The suit had alleged negligence and negligent entrustment The act of leaving an object, such as an automobile or firearm, with another whom the lender knows or should know could use the object to harm others due to such factors as youth or inexperience. in addition to the nuisance claim, and the trial court dismissed all three. The negligence claims failed for lack of proximate cause An act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred.
Proximate cause is the primary cause of an injury. , the court held, and the nuisance claim was defective because the county board had not alleged that the gun industry "exercised control over the nuisance to be abated Abated, an ancient technical term applied in masonry and metal work to those portions which are sunk beneath the surface, as in inscriptions where the ground is sunk round the letters so as to leave the letters or ornament in relief.
From 1911 Encyclopædia Britannica ."
On appeal, the board pursued only the public-nuisance claim, which the Third Circuit shot down in a brief, unanimous opinion. Historically, the court noted, public-nuisance law has applied only to claims alleging interference with land or public rights. New Jersey courts had followed this trend by honoring the boundary between products liability law and public-nuisance law, the court said.
"No New Jersey court has ever allowed a public-nuisance claim to proceed against manufacturers for lawful products that are lawfully placed in the stream of commerce.... If defective products are not a public nuisance public nuisance n. a nuisance which affects numerous members of the public or the public at large, as distinguished from a nuisance which only does harm to a neighbor or a few private individuals. as a matter of law, then the nondefective, lawful products at issue in this case cannot be a nuisance without straining the law to absurdity," the court said.
Even if public-nuisance law could be "stretched far enough" to encompass the plaintiff's allegations, the court said, the lower court was correct in ruling that the claim lacked the requisite showing of proximate cause.
"No direct link is alleged between any manufacturer and any specific criminal act," the court said, agreeing with the defendants' assertion that they were many steps removed from the harm alleged: (1) the manufacturers produce the firearms This is an extensive list of small arms — pistol, machine gun, grenade launcher, anti-tank rifle — that includes variants.
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The court rejected the board's argument that alleging a defendant engaged in conduct that merely contributes to the interference with a property or public right is sufficient to state a public-nuisance claim. "Even if the requisite element is not always termed `control,' the New Jersey courts in fact require a degree of control by the defendant over the source of the interference that is absent here," the appellate court said.
In the second case, a trial court in Essex County Essex County can refer to:
James V, 1512–42, king of Scotland (1513–42), son and successor of James IV. His mother, Margaret Tudor, held the regency until her marriage in 1514 to Archibald Douglas, 6th earl of Angus, when she lost it to John . Arcadia Machine & Tool, No. ESX-L-6059-99 (N.J., Essex County Super. Ct. Dec. 11, 2001).)
The James court criticized the trial court's decision in Camden County, which it found had rejected the plaintiff's claims in that case simply because they were novel.
"If all claims were rejected because they were novel, the law would be where it was in the reign of King John. The law is not so rigid," the court wrote.
Then, taking aim at the Third Circuit's reasoning in Camden County that limited application of public-nuisance law to land and public rights, the James court said, "We are concerned about the accuracy of the definition of real property and violations of public law. In our view, New Jersey law does not require that plaintiffs prove both injury to real property and violation of public rights" to bring a nuisance claim.
Whether the elements needed for such a claim can be established is a factual question that should be left to a decision-maker at trial, the court concluded.
The James court also took issue with the Third Circuit's assumption that the gun manufacturers' conduct in that case was too remote from the alleged harm to sustain a claim: "The question whether defendants have sufficient `control' as to warrant finding against them is essentially factual," and, again, should be decided by a judge or jury.
And while the federal court found that no state court had allowed a nuisance claim based on similar allegations to go forward, the James trial court concluded that "there are no cases which hold that a plaintiffs nuisance action such as this may not be brought. Clearly the action fits within the general principles of nuisance actions, ... and applying the rule against dismissal of causes of action at their inception, the defendant's motion as to the nuisance claim must be denied."
David Kairys, a Philadelphia lawyer Philadelphia lawyer
clever at finding fine points and technicalities. [Am. Usage: Misc.]
See : Cunning and law professor at Temple University who argued on behalf of Camden County before the Third Circuit, said the plaintiff has filed a petition for reconsideration en banc [Latin, French. In the bench.] Full bench. Refers to a session where the entire membership of the court will participate in the decision rather than the regular quorum. In other countries, it is common for a court to have more members than are and a request for certification to the New Jersey Supreme Court.
"These petitions for reconsideration are rarely granted, so I'm not very optimistic op·ti·mist
1. One who usually expects a favorable outcome.
2. A believer in philosophical optimism.
op ," Kairys said. "But I do think we have a really strong case. I think [the petition] should be granted because this is a case where the federal court is trying to say what New Jersey law is."
The James court decision was forwarded to the Third Circuit the day after it was issued, Kairys said, as further proof that a New Jersey court would have allowed the plaintiff's claim to proceed.
"Federal courts in diversity actions are not supposed to create new principles. They're supposed to take the principles already on the books in the state. Instead of doing that, the court created a new causation causation
Relation that holds between two temporally simultaneous or successive events when the first event (the cause) brings about the other (the effect). According to David Hume, when we say of two types of object or event that “X causes Y” (e.g. standard for public nuisance," Kairys said.
Allen Rostron, a staff attorney for the Legal Action Project at the Brady Center to Prevent Gun Violence The Brady Center to Prevent Gun Violence and its sister organization the Brady Campaign to Prevent Gun Violence are dedicated to reducing gun deaths and injuries through education, legislative reform, and litigation. The history of the organizations can be traced back to 1974 when Dr. , agrees.
"The federal courts are supposed to be predicting what the state courts would rule," he said.
Rostron also agreed that the chance of success was slim for the Camden County plaintiff, noting that even if the petition for reconsideration were granted, the reviewing court would be under no obligation to follow a trial court's decision, which does not have the authority of an appellate court ruling.
Despite the setback in Camden County, Kairys said that of all the allegations that have been made in public-entity cases against the gun industry, he still believes that the public-nuisance claim is the strongest.
"It avoids the problems of causation and standing that have up until now resulted in the gun industry winning every claim brought against them," he said.
Of the courts that have considered the public-nuisance claim, eight have rejected it and three (including the James court) have upheld it.
What happens next is hard for anyone to predict. The New Jersey Supreme Court may accept Camden County's request for certification. Or the defendants in James may For the British body snatcher, James May, see .
James Daniel May (born January 16th 1963 in Bristol, England) is a television presenter and award-winning journalist. decide to file an interlocutory appeal An interlocutory appeal, in the law of civil procedure is an appeal of a ruling by a trial court that is made before the trial itself has concluded. Most jurisdictions generally prohibit such appeals, requiring parties to wait until the trial has concluded before they challenge any . Or the case may go to trial and then be appealed.
Eventually, though, the question of whether a public-nuisance action against the gun industry is viable in New Jersey will be decided by a New Jersey appellate court, Rostron said.
"Ultimately, it's up to state courts to decide what state law is."